Supreme Court Prolongs Gay-Marriage Struggle

June 26 (Bloomberg) -- “All deliberate speed” -- that was
the gradualist coda the U.S. Supreme Court added in 1955 to its
second Brown v. Board of Education ruling after it ended school
segregation. In striking down the Defense of Marriage Act
without establishing a general constitutional right for gay
people to marry, the court did the same thing for same-sex
marriage that it once did for segregation: declared a principle
without putting it fully into practice.

In Brown, the court’s goal of making desegregation
palatable failed when Southern whites mounted widespread
resistance. Whether the same strategy will work better this time
remains to be seen, but it certainly sets the stage for many
legal and political battles over gay marriage in the years
ahead.

The big principles Justice Anthony Kennedy declared in his
U.S. v. Windsor opinion (which was joined by the four
Democratic-appointed justices) lived up to the standard he set
in the landmark gay-rights cases of Romer v. Evans and Lawrence
v. Texas. In short, Kennedy wrote, DOMA was an affront to “the
equal dignity of same-sex marriages.”

DOMA was unconstitutional because it was intended to
“disparage and to injure those whom the State, by its marriage
laws, sought to protect in personhood and dignity.”

Constitutional Touchstones

The idea that every human has a basic right to dignity and
personhood doesn’t appear in the text of the Constitution,
either in the equal protection clause (which by its language
applies only to the states, not the federal government) or in
the due process clause of the Fifth Amendment, which does apply
to the federal government and has been taken to incorporate
equal protection. Through Kennedy’s opinions on reproduction,
sex and now marriage, however, dignity and personhood have
become undeniable constitutional touchstones.

This is Kennedy’s legacy. The Windsor decision will join
Casey v. Planned Parenthood, which upheld Roe v. Wade, and
Lawrence v. Texas, which protected gay sex, in the pantheon of
grand declarations on the meaning of liberty. (Although all
these opinions go against current Roman Catholic moral teaching,
careful readers of the future will note that Kennedy’s ideals of
dignity and personhood resonate strongly with the language of
his church’s moral theology since Vatican II.)

Beyond the abstractions, things get complicated quickly.
The DOMA decision means that gay couples married in states that
recognize their union will get full federal benefits. But what
will happen to same-sex marriages in states that don’t recognize
them? And, if same-sex marriages are now entitled to “equal
dignity” under the Constitution, can some states continue to
deny people of the same sex to wed?

Justice Antonin Scalia, in his stinging dissent -- he
called the court “hungry” to announce its holding and said
that the decision’s “diseased root” lay in its aggrandized
notion of its own role -- also made the point that the opinion
gave no guidance on how lower courts should interpret such
questions in the cases that lie ahead.

Today’s other big ruling, on California’s voter-approved
ban on same-sex marriage, gave the court a chance to resolve
these matters by squarely considering whether a state could deny
gay couples the name “marriage” even while providing marriage-like rights. Instead, in a bizarre 5-4 split, with Chief Justice
John Roberts writing for a majority that included Scalia and the
liberals Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan,
the court said it lacked the authority to rule on Hollingsworth
v. Perry because the state of California had declined to argue
that the law was constitutional. The law’s supporters, Roberts
explained, lacked standing because they themselves hadn’t been
ordered by any court to do or abstain from doing anything. A
general interest in vindicating the law passed by the public
wasn’t enough.

Bizarre Coalition

This coalition of justices who didn’t want the court to
announce (or deny) a basic right to same-sex marriage wasn’t the
only bizarre crossing of ideological lines. Kennedy’s dissent,
urging that the issue should have been resolved, also spoke for
a weird group of four, with the liberal Sonia Sotomayor and the
conservatives Samuel Alito and Clarence Thomas joining. It will
take some time to figure out whose motivations went where. But
the effect of the 5-4 ruling was to stop short of a general
declaration of a right to gay marriage.

We can say with some confidence that if Kennedy had been
willing to declare such a general right, all four liberals who
joined him in Windsor would have come along. The implication is
that Kennedy wanted to do something short of that, and that
Ginsburg, Breyer and Kagan thought it would be better for the
court to say nothing about the California law than to uphold it.
This opened the door for Roberts to write an opinion calling for
judicial restraint, his emerging core value after last year’s
decision on the Affordable Care Act.

The upshot is something very much like the gradualism of
the second Brown decision, when the court declared that its ban
on segregation should be put into effect “with all deliberate
speed.” Critics said this was a terrible idea from the start,
and they were proved right when resistance mounted and
desegregation lagged. Social controversy wasn’t averted but
rather encouraged by the court’s impulse to go slow.

We won’t see federal troops in the streets this time, but
there is reason again to doubt whether we will see a gradual
acceptance of same-sex marriage or a redoubled effort by its
opponents to keep it from becoming the norm nationally.
Certainly, lawsuits will be filed immediately, arguing that the
equal dignity of marriage requires states to respect each
other’s marriages, and even to allow their own gay citizens to
marry. The issue is going to become more fraught in the next few
years as it works its way through the courts, not less.

Brown has gone down as a great opinion poorly implemented,
inspirational in principle and deeply flawed in practice. I
suspect Windsor and Perry combined will leave the same legacy.

(Noah Feldman, a law professor at Harvard University and
the author of “Cool War: The Future of Global Competition,” is
a Bloomberg View columnist. Follow him on Twitter at
@NoahRFeldman.)